The opinion of the court was delivered by: WOLIN
In this asbestos action, defendants named in two complaints filed by plaintiffs move, on statute of limitations grounds, for summary judgment dismissing one or both of plaintiffs' claims for asbestos-related injuries. Defendants contend that the New Jersey tolling statute, N.J.S.A. 2A:14-22, is unconstitutional as an impermissible burden on interstate commerce under the dictates of the United States Supreme Court's decision in Bendix Autolite Corporation v. Midwesco Enterprises, Inc., 486 U.S. 888, 108 S. Ct. 2218, 100 L. Ed. 2d 896 (1988). For the reasons set forth below, the Court finds that the New Jersey tolling statute is constitutional and therefore denies defendants' motion for summary judgment.
On September 11, 1985, plaintiffs, Alfred Cutler and his wife, Margaret, residents of New Jersey, filed a complaint against defendants, Owens-Illinois, Inc., Celotex Corporation, Keene Corporation, Pittsburgh-Corning Corporation, Armstrong World Industries, Inc., Fibreboard Corporation, Porter Hayden Co., Inc., AC&S, Inc., Nosroc, Inc. and T&N, plc., alleging that as a result of exposure to defendants' asbestos products, plaintiff, Alfred Cutler, had sustained present injuries, including colon cancer, and threatened future injuries to his respiratory system and other parts of the body.
On December 2, 1985, plaintiffs filed a subsequent complaint against National Gypsum and TNT Liquidating Company, wherein plaintiffs repeated the same allegations set forth in their first complaint. On November 3, 1986, the two complaints were consolidated by Order of United States Magistrate G. Donald Haneke. None of the defendants are New Jersey corporations.
Plaintiff Alfred Cutler worked as a laborer and pipe fitter from approximately 1946 until 1981. Plaintiff's employers included the Mobil Oil Corporation ("Mobil") at a facility in Paulsboro, New Jersey. In January, 1982, a doctor at Mobil apparently informed Cutler that he had an asbestos-related pulmonary condition. On October 5, 1983, Cutler was diagnosed with cancer of the colon. Cutler died on July 31, 1987. Margaret Cutler now pursues the suit in her own behalf and as the executrix of her husband's estate.
Defendants argue that the United States Supreme Court's recent decision in Bendix Autolite Corporation v. Midwesco Enterprises, Inc., 486 U.S. 888, 108 S. Ct. 2218, 100 L. Ed. 2d 896 (1988), mandates a finding that N.J.S.A. 2A:14-22 is unconstitutional as an impermissible burden on interstate commerce. In Bendix. The Supreme Court found that the Ohio tolling statute violated the Commerce Clause. The Court stated:
The Ohio statute of limitations is tolled only for those foreign corporations that do not subject themselves to the general jurisdiction of Ohio Courts. In this manner the Ohio statute imposes a greater burden on out-of-state companies than it does on Ohio companies, subjecting the activities of foreign and domestic corporations to inconsistent regulations.
Bendix, 108 S. Ct. at 2222.
Defendants contend that the New Jersey tolling statute operates as to them in the same manner the Supreme Court found objectionable in Bendix. The Court disagrees. In Bendix, the predominant concern which the Supreme Court expressed about the Ohio tolling statute was that it confronted foreign corporations with the choice of either foregoing statute of limitations protection or designating an agent for service of process and being subject to the general jurisdiction
of Ohio courts regardless of the corporation's contacts with Ohio. Bendix, 108 S. Ct. at 2221. The New Jersey tolling statute dues not impose the same choice on foreign corporations.
The present New Jersey tolling statute was enacted by the New Jersey Legislature in 1984 in response to the New Jersey Supreme Court's decision in Coons v. American Honda Co., Inc., 94 N.J. 307, 463 A.2d 921 (1983). In Coons, the court found that the predecessor version of N.J.S.A. 2A:14-22 violated the Commerce Clause because it forced foreign corporations to obtain a "certificate to do business in New Jersey" in order to gain the benefit of the limitations period. The court found that the certificate requirement constituted a "forced-licensure provision" in contravention of the Commerce Clause. The state legislature subsequently amended 2A:14-22 so that a corporation could avail itself of the limitations period by filing "with the Secretary of State a notice designating a representative to accept service of process." The State Senate Judiciary Committee stated:
[The] filing of a notice designating a representative to accept process is a less burdensome requirement than obtaining a certificate to do business. Therefore, by providing that a foreign corporation would be deemed represented for purposes of N.J.S. 2A:14-22 if such a notice were filed, S-953 is intended to meet the Supreme Court's objections as stated in the Coons ...